Eric Posner, Executive Power, and the 4th of July

Last July 4, I took a stroll along the Chicago lakefront in my neighborhood. As far as the eye could see, ordinary people were setting off fireworks, and not just everyday firecrackers, but what seemed like commercial-grade fireworks that showered sparks on us from high in the air. Numerous police officers stood around and watched. Even though fireworks (beyond smoke bombs and sparklers) are quite illegal in Chicago, no one moved to make an arrest or even issue a warning.

This is a familiar example of executive discretion. Hundreds of people violated the law. The police did nothing about it. Why not? Maybe because they did not have enough resources. Maybe because the mayor thought arrests would be unpopular. Maybe because the police enjoyed the fireworks display. Who knows? It doesn’t matter. No one thinks that the city government behaved unconstitutionally though quite a few citizens complained. (This has been going on for many years.)

I think this analogy falls short of explaining the President’s DACA plan for a few reasons. A better example would be that the Chicago Police Department decided not to arrest anyone who received illegal fireworks from their parents–even if they are 30 years old. Do you think it would be as palatable for the police to start arresting parents, but not their 30 year-old children, who are both using the fireworks? The President is enforcing immigration laws against millions of immigrants, but decided to cut out an entire class of people to prosecute. Unless he expands DACA, and refuses to deport the parents who brought their children to the USA.

Or, let’s use another example of the President’s failure to execute the marijuana laws in Colorado and Washington. What if the Chicago Police Department decided not to arrest anyone in Hyde Park for smoking pot, but continued to arrest people on the South Side for lighting up. The selective enforcement nature of the President’s failure to execute the law in several contexts is quite different from the 4th of July blanket ban on prosecutions.

Further, it would not be implausible to argue that the Chicago City Council would be agreeable to non-enforcement on this one day of the year. If they weren’t, they could hold the Police Department accountable, and order a crackdown the following year. (Growing up in the Giuliani New York City era, I witnessed a serious crackdown on fireworks during the 1990s). The same political accountability does not exist when the President declines to enforce the law–Congress has no options to force the President to do something.

But really, neither of these selective examples matters much. Posner would seem to argue that the President can decline to enforce the law, period.

Various commentators seem to be shocked by my claim that the president can refuse to enforce the immigration laws. They think that such an action would violate the Constitution. No lawyer does, aside from a few with idiosyncratic views about the Constitution. Let me see if I can explain why.

I’m not sure what these “idiosyncratic views” of the Constitution are, but as I discuss in Congressional Intransigence and Executive Power, the Take Care clause has teeth. The fact that Congress passes a law concerning deportation, and allocates a budget for deportation is significant. The President cannot simply disregard the law as a means to enact a different substantive policy.

Posner also charges that President Bush was guilty of not enforcing immigration laws as well–no one was punished for employing undocumented workers. I agree that failing to enforce the laws is a bipartisan problem. Each President aggrandizes the power of his predecessor, in a long train of a one-way executive authority ratchet. In particular, declining to enforce the law serves as a means to quietly enact laws Congress rejected. Consider the parade of horribles:

Imagine if President Romney, relying on the same sort of power exercised by President Obama, had delayed the Affordable Care Act’s individual and employer mandates indefinitely, until there were enough votes to repeal it. Or if President Rand Paul decides not to enforce the corporate income tax against successful Fortune 500 companies, citing similar prosecutorial discretion relied on in DACA. Or if President Hillary Clinton decides to waive the requirement that welfare recipients participate in the workforce to receive benefits. Or if President Ted Cruz, in keeping with the President’s decision not to enforce controlled substance laws in two states, decides not to prosecute Texas businesses for violations of environmental laws. Or if President Elizabeth Warren decides that the government will no longer collect any interest on federally-guaranteed student loans, waiving any enforcement against defaulting debtors. Or if President Rick Perry determines that based his discretion under the naturalization powers, he can decide to halt all naturalization of people from certain Latin American countries. Or if President George W. Bush had instructed his Social Security Department to not collect a certain percentage of social security taxes, allowing people to deposit the funds directly into individual accounts. I could go on, but you get the picture. In the wrong hands, through the suspension of the laws, the Executive, emboldened by creative lawyers, can enact policies that could never be passed through the legislative process.

Perhaps Posner would be okay with each of these options, finding them no more objectionable than the Chicago Police Department not arresting celebrants on the 4th of July. I find each of these actions dangerous, and a threat to the separation of powers.